Heard: October 5, 2015.
Indictments found and returned in the Superior Court Department on April 9, 2013.
The case was tried before Edward J. McDonough, J.
Leslie H. Powers for the defendant.
Alyson C. Yorlano, Assistant District Attorney, for the Commonwealth.
Present: Vuono, Carhart, & Sullivan, JJ.
Following a trial on multiple indictments, a jury convicted the defendant, Keith Henderson, on two indictments charging leaving the scene of an accident causing personal injury in violation of G. L. c. 90, § 24(2) (a.1/2) (1), and on three indictments charging leaving the scene of an accident causing property damage in violation of G. L. c. 90, § 24(2) (a.) - On appeal, the defendant maintains that (1) the judge erred in failing to instruct that the Commonwealth must prove that he had the specific intent to leave the scene of the accident, and (2) he was convicted of multiple counts of leaving the scene of an accident in violation of his right to be free from double jeopardy. We conclude that the jury were properly instructed, but that, on the facts presented, the convictions were duplicative. We therefore vacate the judgment on one of the counts of leaving the scene of an accident causing personal injury and the judgments on all but one of the counts of leaving the scene of an accident causing property damage. We affirm the remaining judgments.
The evidence pertinent to the appeal may be summarized as follows. Sean Kydd's car was taken from him at gunpoint on March 5, 2013, by a man he was unable to identify. Kydd filed a police report that day, reporting the car stolen. Nine days later on March 14, 2013, Kydd spotted his car in Springfield and called the police. Two police officers in marked police cruisers met Kydd, and all three drove separately to where the car was located.
As the caravan passed Kydd's stolen car, one police officer made eye contact with the driver, who was later identified as the defendant. "[T]he [car] took off" in the opposite direction. The officers followed in pursuit. The defendant "continued accelerating" and "pull[ed] away at a good distance." The defendant approached a red light at the corner of Wilbraham Road and Alden Street and, instead of stopping, kept going. The car driven by the defendant "sideswipe[d]" a vehicle that was stopped at the red light, crossed the intersection, and crashed a "split second" later into two other vehicles in the oncoming lane of traffic. The officers estimated the defendant's speed at the time of the accident as fifty-five to sixty and sixty-five to seventy miles per hour in a thirty-five miles per hour zone. Three cars were damaged, and two occupants of different vehicles were injured.
The defendant got out of the car, stumbled, and tried to run across the street toward a gas station on the corner. The defendant ran for approximately twenty feet before he was apprehended by police.
1. Jury instructions.
At trial, the defendant argued that he had not fled the scene; rather, he merely stumbled as he got out of the car. Citing Commonwealth v. Liebenow, 470 Mass. 151, 157 (2014), the defendant, for the first time on appeal, now attempts to recast his defense, stating that the judge should have instructed the jury that the defendant must have the subjective intent to flee the scene. The defendant's claim of error rests on his contention that specific intent to leave the scene is an element of the offense. The argument conflates knowledge and intent, which are not wholly coterminous. See Commonwealth v. Sama, 411 Mass. 293, 298 (1991). Knowledge is the operative element under the statute.
"To prove the charge of leaving the scene of [property damage], the Commonwealth must prove beyond a reasonable doubt that (1) the defendant operated a motor vehicle (2) on a public way (3) and collided with or caused injury in some other way to another vehicle or to property; (4) the defendant knew that he had collided with or caused injury in some other way to that other vehicle or property; and (5) after such collision or injury, the defendant did not stop and make known his name, address, and the registration number of his motor vehicle. G. L. c. 90, § 24(2) (a) ."Commonwealthv.Platt, 440 Mass. 396, 400 n.5 (2003). The elements of leaving the scene of an accident causing personal injury are similar, except that the Commonwealth must prove injury to the person rather than damage to property. See G. L. c. 90, § 24(2) (a1/2) (1) . See also Commonwealthv.Muir, 84 ...